Don Hawthorne’s practice focuses on cutting–edge and big ticket litigation, often in the financial services industry and in litigation with international parties. He has been prominently engaged in litigation related to the US 2007-08 financial crisis, assisting clients in recovering hundreds of millions of dollars for RMBS investors and in trustee direction proceedings. Don’s team is experienced in litigating a wide range of issues arising from distressed securitized debt, and is often adverse to major commercial banks. He is a go-to counsel for matters concerning complex financial instruments, including serving as the expert witness in jury and bench trials in 2019 and 2020 for the Rescap trustee, providing testimony about the rights of debt noteholders that has led to the recovery of billions of dollars for the Rescap estate. He is currently engaged in potential litigation arising from the COVID downturn concerning contract non-performance and distressed opportunities, including in securitized debt and commercial real estate.
Don frequently represents foreign parties in US litigation. He has deep connections with Japanese clients, travels to Japan regularly, and also handles matters concerning offshore jurisdictions.
Don’s practice encompasses the full range of complex contractual and securities litigation. Don represents parties before the SEC and has led many internal investigations. Much of his practice concerns litigation over the significant financial consequences of such basic contract terms as “indemnification,” “warranty,” “royalty,” and “material adverse change” — terms that contract parties often find are far more financially significant than was anticipated at the time of drafting.
- American Bar Association
- Association of the Bar of the City of New York
Financial Services Litigation and Complex Commercial Litigation
- Lead counsel for monoline insurer Syncora Guarantee Inc. in its suit against Countrywide Home Loans for fraud and breach of contract arising from financial insurance provided for over $6 billion in residential mortgage-backed securities (“RMBS”). Obtained $375 million dollar settlement.
- Lead counsel for multiple hedge funds and institutional investors in RMBS litigation including Article 77 proceedings and claims against Trustees and Servicers
- Lead counsel for financial industry service provifer in defense of multiple indemnification claims brought by major money center banks
- Expert witness on the reasonableness of Rescap’s RMBS settlements in action by RMBS trustee to recover $9 billion in indemnification suits. Testimony at jury trial led to directed verdict on reasonableness of settlements.
- Counsel to multiple monoline insurers and association of financial guaranty insurers on pending suits and potential claims related to RMBS and other securitized asset classes.
- Lead counsel for investment bank in successful defense of securities claims arising from its role as auction manager for auction rate securities (“ARS”). Obtained dismissal on the pleadings.
- Lead counsel for investment bank in defense of antitrust class action alleging conspiracy among auction managers for auction rate securities (“ARS”). Obtained dismissal on the pleadings.
- Lead counsel for private equity investor in successful defense of $108 million short swing profit derivative claim. Obtained dismissal on the pleadings.
- Lead counsel for private equity investor in successful defense of breach of fiduciary duty action challenging $4.5B acquisition and related appraisal proceeding in Delaware Chancery Court.
- Lead counsel for insurer in internal and SEC investigation of insurer’s sales of “finite insurance” policies.
- Lead counsel for mutual fund in internal investigation of allegations of “market timing.”
- Lead counsel for private equity investor in successful motion to dismiss Section 10(b) and controlling person securities class action claims against private equity investor and its appointed directors. Obtained dismissal on the pleadings.
Antitrust Litigation and Counseling
- Lead counsel for investment bank in defense of antitrust class action alleging conspiracy among auction managers for auction rate securities (“ARS”). Responsible for portion of joint defense brief addressing “Billing” preclusion that was basis for dismissal on the pleadings.
- Lead counsel for defendant manufacturer of copying machines in class action suit involving “Kodak” claims alleging tying and monopolization of parts and services after-markets. Obtained dismissal on the pleadings.
- Representation of major insurer in internal and New York Attorney General’s investigation of bid-rigging allegations relating to insurer’s brokerage compensation arrangements. Lead attorney coordinating response to related state regulatory investigations and private class action litigation.
- Lead antitrust counsel for Domtar in its $6 billion combination with Weyerhaeuser’s fine paper business. Merger of second and third largest competitors in homogenous products industry resulted in DOJ resolution within initial waiting period with no divestitures.
- Individual representation of US and Asian executives in DOJ criminal investigations of alleged international air freight and passenger cartels.
- Successful representations of parties in billion dollar mergers in commodity, differentiated product, software and distribution industries before the DOJ and FTC.
- Counseling founders of DVD standard on antitrust issues relating to standard-setting, including obtaining business review letter approving DVD patent pool licensing arrangements and drafting DVD patent licensing agreements.
International Disputes and Offshore Litigation
- Lead counsel for insurer in multi-jurisdictional coverage and collection dispute involving insolvency proceedings, contempt actions, corporate governance issues, and claims of sovereign immunity in federal court, Delaware Chancery Court, and off-shore jurisdictions. Obtained dismissal of all claims against insurer. Pursuing fee claims and sanctions against plaintiffs.
- Lead counsel for private equity investor seeking to hold parent Austrian bank liable for payment of arbitral award obtained against Russian subsidiary through litigation in US, European and off-shore jurisdictions.
- Representation of Japanese corporation in dispute with American joint venture partner over operations in China and India involving US, Japanese and Indian jurisdictions.
- Successful defense and settlement of multi-million dollar construction delay claim against architect of major convention center construction project.
- Successful resolution of litigation concerning business interruption coverage payments to principal World Trade Center retail leaseholder.
- Axinn Obtains Victory for CWW and Chubb in Long-Running Contempt Proceeding
- Axinn Obtains Global Settlement of Claims Against Code Rebel
- Axinn Obtains Dismissal of Declaratory Judgment For Canadian Inventor
- Axinn Obtains Civil Contempt Order Over Foreign Lawyers and Litigation Funders
- Axinn Achieves Win for Canadian Inventor
- Axinn Obtains Dismissal of Monopolization and Attempted Monopolization Suit Against Rapid Aid, Ltd.
- Axinn Honored With Litigation Department of the Year
- Axinn Assists Syncora Guarantee Inc. In $375 Million Settlement With Bank of America Corp.
- View More ›
- Axinn Insights on U.S. Litigation for Japanese Companies: The Duty to Preserve Documents and Implement Litigation Holds in U.S. Civil Litigation, August 19, 2019
- DOJ's New Suit Against UBS Will Be Ultimate Test of FIRREA's Power, Reuters, November 9, 2018
- Wells Fargo Investor Sues Over 'Culture Of Lawlessness', Law360, May 18, 2018
- Wells Fargo's Latest Snafu Renews a Question: Can an Insider Fix the Bank?, American Banker, May 17, 2018
- Wells Fargo Hunts for Mis-Selling Victims After $1bn Fine, Financial Times, April 20, 2018
- Barclays' High-Risk RMBS Fight Appears To Have Paid Off, Law360, March 30, 2018
- Barclays Agrees to Pay $2 Billion for Selling Toxic Mortgages Before Financial Crisis, The Washington Post, March 29, 2018
- Blackstone's Disputed CDS Trade Set for Court Hearing, Bloomberg News, January 25, 2018
- ‘Guns drawn’ in RMBS Secondary as Reserve Theories Multiply; Pre-Call Reserves Become a Concern, Debtwire, July 11, 2017
- Treasury Plan Could Change US Consumer Financial Oversight, Despite Obstacles, Reuters, June 28, 2017
- An UnSAFE Bet: SEC Raises Flag on Silicon Valley Investment Darling, New York Law Journal, May 11, 2017
- Regulator's Wells Fargo Post-Mortem Likely to Bring Banks More Scrutiny, New York Law Journal, April 25, 2017
- Arrest Warrant Issued for Litigation Financier, Foreign Lawyer in $180 Million Case v. Cigna, Reuters, March 21, 2017
- Corzine Tells Court PwC Audits Were Vital to Trust in MF Global, Financial Times, March 9, 2017
- Five Things to Look Out For in the US Bank Earnings, Financial Times, January 12, 2017
- Big Banks Lose Bid to Halt Crisis-Era Lawsuits, The New York Times, January 10, 2017
- Banking Litigation To Watch In 2017, Law360, January 2, 2017
- Third-Party Funders That Chased Liberian Judgment Face Sanctions By Federal Judge, Legal News Line, August 23, 2016
- Why Financial Crisis Cases Against Wall Street Execs Veered Off Target, Law360, July 15, 2016
- Faulty Troubleshooting Hurt Citi In CFTC Benchmark Probe, Law360, May 25, 2016
- New Federal Reserve Push to Limit Fallout From Bank Failures, Financial Times, May 3, 2016
- Trustee Claims on Legacy RMBS Are on the Clock, National Mortgage News, April 20, 2016
- Wells Fargo in $1.2bn Mortgage Settlement, Financial Times, February 3, 2016
- Wells Fargo's Settlement Over FHA Claims, Financial Times, February 3, 2016
- Ambac Bears Down on JPM RMBS Settlement, Debtwire, January 19, 2016
- BofA Scores Another Win for Second-Liens, October 7, 2015
- Coming CFPB Arbitration Rules Face Multiple Legal Fights, Law360, October 7, 2015
- Fierce Battle Ahead for CFPB Arbitration Plan, The American Banker, October 7, 2015
- Putback Settlements on Horizon, Asset-Backed Alert, August 21, 2015
- Citi, Paul Weiss Take Sting Out Of SEC's $180M Settlement, Law360, August 17, 2015
- Goldman to Pay $270 Million to Settle RMBS Suit; HSBC Must Face NCUA Claims, Judge Rules, Inside Mortgage Finance, August 7, 2015
- Court Affirms Controversial RMBS Statutes Ruling, Debtwire, June 11, 2015
- Second-Lien Holders No Longer Second Class, Mortgage Servicing News, June 3, 2015
- Four Banks Plead Guilty To Foreign Exchange Collusion, UBS Pleads Guilty To Wire Fraud, Forbes, May 20, 2015
- Counsel’s Corner: Should the Statute of Limitations Apply for ‘Putback’ Claims on RMBS?, DSNews, May 8, 2015
- Nomura Bucks Wall St. Trend In Risky FHFA Trial Gambit, Law360, March 12, 2015
- 10th Circ. Revives $550M Barclays RMBS Suit, Law360, March 3, 2015
- Banking Cases to Watch in 2015, Law360, January 2, 2015
- Judge Rebuffs Antitrust Claims Against Canadian Maker of Therapy Products, Global Competition Review, October 1, 2014
- Lawyers Weigh in on High Court's ERISA Ruling, Law360, June 25, 2014
- Exclusive: U.S. using JPMorgan penalty to speed cases against other banks, Reuters, June 11, 2014
- Bill Making Clerical Dismissals Harder Could Aid Plaintiffs, Law360, May 13, 2014
- The RMBS Credit Crisis Litigation — Lessons Learned, Law360, May 5, 2014
- Banking Cases to Watch in 2014, Law360, January 1, 2014
- DOJ's Countrywide Win Could Force More Bank Settlements, Law360, October 23, 2013
- Airline Merger Set to Become Slugfest, Law360, August 13, 2013
- U.S. Accuses Bank of America of Mortgage-Backed Securities Fraud, Property Casualty 360, August 7, 2013
- U.S. Accuses Bank of America of Mortgage-Backed Securities Fraud, Reuters, August 6, 2013
- NY Ruling Against Goldman Pokes Hole In Diligence Defense, Law360, May 8, 2013
- Who Won the $1.7 BLN Settlement Between BofA and MBIA?, Thomson Reuters News & Insight, May 7, 2013
- MBIA, Bank of America Reach $1.6 Billion Cash Settlement, Reuters, May 6, 2013
- New Billion-Dollar MBS Question: Are There Limits on Monoline Damages?, Thomson Reuters News & Insight, April 11, 2013
- Goldman May Have Found Silver Bullet for Volcker Rule, Law360, April 2, 2013
- How the Belgacom Ruling Will Impact Attorney Privilege in EU, Law360, March 25, 2013
- Assured’s MBS Win May Force Wave of Bank Settlements, Law360, February 7, 2013
- Bond Insurers Aren’t the Only Winners in Rakoff’s Flagstar Ruling, Thomson Reuters News & Insight, February 6, 2013
- 8.5B BofA Mortgage Pact Hid Self-Dealing, Investors Say, Law360, February 4, 2013
- Banking Cases to Watch in 2013, Law360, January 1, 2013
- U.S. Judge Says FHFA Cases Against Banks Can Proceed, November 28, 2012
- Analysis: New York Suit Against JP Morgan Makes a Ripple, Not a Splash, Reuters, October 2, 2012
- JPMorgan Suit Heralds Wave of US Action, Financial Times, October 2, 2012
- NY's Martin Act May be Key to Federal MBS Crackdown, Law360, October 2, 2012
- Germany Wants Its U.S. Mortgage Money Back: Street Whispers, TheStreet.com, September 7, 2012
- 2nd Circ. Revives Goldman Sachs Mortgage Class Action, Law360, September 6, 2012
- Axinn Brings on Mortgage Crisis Litigator from Debevoise, Law360, July 20, 2012
- Linklaters, Kaufman Dolowich, McKenna: Business of Law, Bloomberg News, July 13, 2012
- Personal Notes on Lawyers, New York Law Journal, July 12, 2012
- The Churn: Lateral Moves and Promotions in the AM Law 200, The AmLaw Litigation Daily, July 10, 2012
- Movers, The National Law Journal, July 1, 2012
- Recent Trends In Federal Antitrust Class Action Cases, ANTITRUST, Summer 2010
- Rigorous Analysis of Economic Evidence in Class Certification of Antitrust Cases, ANTITRUST, Fall 2009
- Federal Circuit Decision Provides Guidance for Joint Licensing of Pooled Patents, Patent Strategy & Management, September 2009
- The FTC's-N-Data Decision: Challenges To 'Unfair Competition' That Does Not Violate Antitrust Law, Andrews Antitrust Litigation Reporter, July 16, 2008
Seminars & Classes
- Don has served as an Adjunct Associate Professor of Law at the Benjamin N. Cardozo School of Law, where for many years he taught courses on the regulation of electronic media covering legal issues concerning broadcast and cable media, the Internet and telephony.
- JD – Yale Law School (1991)
- PhD – Balliol College, Oxford University (1998) Rhodes Scholarship
- BA, magna cum laude – Princeton University (1982) Phi Beta Kappa
- New York
- US Court of Appeals for the First Circuit
- US Court of Appeals for the Second Circuit
- US Court of Appeals for the Third Circuit
- US District Court Eastern District of New York
- US District Court Southern District of New York